Remaining Legal Hurdle on Channel Deepening Removed

by Mike O'Bryant
Columbia Basin Bulletin - October 17, 2003

The final legal hurdle blocking a project to deepen the Columbia River navigation channel was settled in Vancouver, Wash. last week and, for a brief period of time, that leaves financing as the only barrier still blocking the U.S. Army Corps of Engineers' project.

On Friday, the Port of Vancouver Board of Commissioners unanimously approved an expensive settlement between the port and Seattle-based Columbia River Alliance for Nurturing the Environment (CRANE). The settlement will cost the port about $35 million for construction and wildlife mitigation, and requires it to cut in half the land it had intended to develop at its Columbia Gateway project adjacent to existing port facilities. In addition, the Port of Portland must contribute $750,000 for wildlife habitat improvements in the Vancouver Lake lowlands.

However, the settlement allows Vancouver to move ahead on plans to develop 517 acres of its Columbia Gateway project and it frees the Corps and its partners, the six lower Columbia River ports, to move ahead on the channel deepening project. The ports say the project is needed to accommodate deeper draft ships so they can remain competitive

In exchange, Paul King of CRANE and former owner of Vanalco, an aluminum plant located at the port that closed during the West Coast 2000-01 energy crisis, must end his litigation of the Corps' channel deepening project and promise not to mount any future challenges to the project.

But Northwest Environmental Advocates' Executive Director Nina Bell said her organization, which has long opposed the project that would deepen by three feet the lower 103 miles of river channel, is ready to fill the litigation vacuum. NEA will file a lawsuit within two months that she hopes will negate NOAA Fisheries approval of the project.

"We always had intended to file a lawsuit against NOAA Fisheries, regardless of the outcome with CRANE," Bell said.

CRANE challenged the Washington Department of Ecology's issuance of a 401 water quality certification and a Coastal Zone Management Act consistency certification of the project in August, asking the Washington Pollution Control Hearings Board to stay Ecology's decision until the board had an opportunity to hear its arguments. That stay, issued Aug. 26, effectively invalidated the state agency's approval of the U.S. Army Corps' plan to deepen the Columbia River channel by three feet until the board heard weeklong oral arguments. That hearing has now been canceled.

When issuing the stay, the PCHB strongly suggested the parties get together to mediate a settlement, said CRANE attorney Mark Schneider, and all parties at that time agreed.

However, it soon became apparent that the most productive course of action for CRANE would be to get together with the ports of Vancouver and Portland, he said. That became the "logical focus for the settlement discussions," although neither port had been a party to CRANE's challenge of Ecology's approvals. Nor was Ecology included in the settlement negotiations, according to the department's Sandy Howard.

Paul King had for 12 years opposed through litigation the Gateway project which butts up against the Vancouver Lake lowlands, prime habitat for migratory birds, including the Sandhill Crane. The project would have developed for industrial use over 1,000 acres of land now used for farming. The settlement gives up more than half -- 542 acres -- of the land to wildlife and gains the $750,000 offered up by the Port of Portland to help pay for wildlife mitigation.

The settlement had at least one Port of Vancouver commissioner wondering what the connection is between this settlement and the channel deepening project.

"It's extraordinary that the Port's Gateway development is linked to channel deepening," said Port commissioner Bob Moser, who favored the wildlife mitigation plan included in the settlement. He noted that King yielded a "great amount of power" and added, "I'm not sure this is what we want our democracy to be, but right now I'm not quibbling about it."

However, Schneider said the settlement is related to channel deepening through the Gateway project, which will accept fill made up of dredged material from the channel deepening operations.

Throughout CRANE's challenge to Ecology's certification approvals, the Corps has said neither the challenge nor the stay would stop it from issuing a record of decision for the project. In fact, it issued its ROD to the Corps head offices in Washington D.C. two to three weeks ago, said the Corps' Matt Rabe.

For King the final settlement calls for him to drop his challenge to Ecology's Clean Water Act and Coastal Zone Management Act approvals and to refrain from pursuing any further legal challenges either of the Port of Vancouver's Columbia Gateway project or of the Corps' channel deepening project.

The Port of Vancouver must cut in half its Gateway development to 517 acres and restore habitat in the 542 acres near Vancouver Lake.

The Port of Portland must help fund that restoration with a $750,000 contribution to CRANE, which will use the funds for restoration and to create wildlife habitat.